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UNITED STATES v. PAYDEN

November 26, 1985

UNITED STATES OF AMERICA,
v.
DONALD PAYDEN, EUGENE COLEMAN and ANTHONY GRANT, Defendants.



The opinion of the court was delivered by: EDELSTEIN

OPINION AND ORDER

EDELSTEIN, District Judge :

 This opinion is the sixth relating to this case. The background facts may be read in the other opinions. *fn1" Familiarity with them is assumed.

 At a robing room conference during the trial of this case, defendant Anthony Grant's attorney, Robert Herbst, stated that the government was about to introduce evidence against his client that constituted inadmissible hearsay and moved to exclude the evidence. (Tr. at 1641-42). n.2 [Footnote Omitted] The court requested the government to present an offer of proof regarding this testimony. (Tr. 1704). Assistant United States Attorney John Carroll did so and the government and Mr. Grant both submitted memoranda on his issued. This procedure was followed to avoid any possible prejudice to Mr. Grant's co-defendants that would arise if the court admitted the evidence subject to connection with the conspiracy charged in the indictment, and later determined that the evidence was either totally inadmissible or admissible only as to Grant.

 The court finds that the evidence consisting of statements by Grant and a third party is admissible as to defendant Grant. This evidence is not admissible to the other defendants, Donald Payden (a/k/a "Country") and Eugene Coleman. Under these circumstances, a jury instruction is not sufficient to protect the interests of Payden and Coleman. Accordingly, the government is precluded from offering this evidence.

 BACKGROUND

 Viewing the facts in the light most favorable to the government, the offer of proof presented by the government consists of the following information. This information is contained in two DEA form Sixes (exhibits 3502 EE and 3503 B) as well as the government's memoranda and offer of proof. The "Sixtes" were prepared by Special Agent Marvin Siegel, the case agent for the investigation and the officer personally involved in the incident with Grant and Special Agent Beatrice Leone who accompanied Siegel during the July 19, 1985 incident. The government would seek to introduce these facts through Special Agent Siegel and Special Agent Leone.

 
Special Agents Marvin Siegel and Beatrice Leone, while parked in the vicinity of 158th Street and Amsterdam Avenue, were approached by Anthony Grant. Grant offered to sell Siegel a variety of narcotics but Siegel initially rebuffed him stating that he did not believe that Grant would be able to sell him the quantity of heroin that he wished to purchase. Grant, disclaiming that he should not be telling Siegel this, then identified a location on Amsterdam Avenue as "Country's" and stated that all the heroin in the area was "Country's," and that "Country" could supply all the heroin Siegel needed. At that time Siegel observed Donald Payden [a/k/a "Country"] standing in front of the location Grant had pointed out.
 
Grant, drove away, and returned approximately ten minutes later. At that time, Grant entered Siegel's automobile and they discussed a narcotics transaction. Siegel reported to Grant that he would be interested in doing business if Grant could get heroin from Country. Grant replied that his brother worked for Country and could supply all the heroin Siegel wanted; Grant also fixed a price of $35.00 per quarter.

 automobile back to the vicinity of 158th Street and Amsterdam Avenue. Grant got out of Siegel's automobile and walked to an individual he later identified as "Eric." After a brief moment, Grant returned to Siegel's vehicle and told Siegel that Eric worked for Country and had heroin available for sale. Eric then briefly joined Grant at Siegel's vehicle and first asked Grant if Siegel was going to do the deal and then directed Grant to "do the transaction." Eric then rode away from the car on his bicycle.

 reluctant to do the deal at that time but that he would return in the future. Grant gave Siegel a slip of paper with the phone number where he could be reached and Siegel departed.

 Memorandum in Support of the Admission of Certain Evidence Relating to Incidents Occurring on July 19, 1984 at 2-3.

 DISCUSSION

 I. Admissibility of ...


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